Hi, I’m Jim Hacking, immigration attorney practicing law here in St Louis, Missouri. Employers who want to sponsor a foreign immigrant worker to work in the United States in the H-1B visa category have a lot of hurdles that they have to overcome. We’ve talked about some of those hurdles on other videos. Right now what we’re going to discus is the I-129, which is the form that’s used to apply for a non-immigrant visa for an immigrant who wants to work temporarily in the United States. I know I’m sort of all over the place with non-immigrant and immigrant, but the gist of the matter is that there’s certain things you have to file and the application process is pretty rigorous.
We start off with the I-129 itself, which is the form that the employer sets for the employment opportunity, the employer, and information about the beneficiary, the employee who will have that job. The next form is an I-907, which is the premium processing form. We encourage all of your clients to file a request for premium processing along with their H-1B application. The reason for that is we think you get a higher level of scrutiny and the Immigration Service also promises to adjudicate the petition within 15 business days. Now, if they send you a request for evidence that stops that clock and they reset for 15 more days once they respond to the RFE.
So we also file a G-28, which is the form that says that we represent them. And along with the I-129 there’s some supplements that provide more information about the employment opportunity and the employee themselves. A lot of the evidence we submit in support of the H-1B application has to do with the employer, and the other big chunk of evidence has to do with the employee. So let’s talk about the employers.
With an H-1B application one of the things you want to demonstrate is that the employer is a legitimate company, that they have the ability to pay the employee the wages, and that the government doesn’t think that this is a fly by night employment opportunity. We want to make sure that it’s a legitimate company, finding legitimate services, they look at how old the company is, how many employees the company has, whether the company relies too heavily on each one of the employees, and they want to make sure there’s no close family relationship between the employer and the employee.
On the employee side, they want to look at the entire immigrant history for the employee. So if the employee’s ever been in the United States they’re going to want to look at the entrances and exits of the employee. They want to know what visa status the employee has been in the United States. If they’ve been in the United States on a J-1 Exchange Visitor Visa, they’re going to want to make sure that the person has satisfied any requirement to return back home to the home country, and they’re going to look generally at the qualifications of the employee to make sure that they’re well suited for the job.
As for the job itself, we’ve already talked in other videos about how we’ve gotten the Labor Condition Application. If you want more information about that click on the Labor Condition Application video. But that goes along too with it, so that’s the Department of Labor certification that the job is a specialty occupation and that the person can fulfill the job. So they don’t look at the qualification at the DOL, they just look at whether the job is properly classified and whether the prevailing wage has been satisfied.
The H-1B applications of course all go into the Immigration Service if the employer is what’s called subject to the cap. That is if the employer is an everyday business, not a university or institute of higher learning or a research facility they’re going to be subject to the H-1B cap, which means that these applications are all going to be do honor about April first each year, which means if there’s a big flurry of activity in late February, early March to get the applications put together, and then the employer and the employee wait to see if they get through what’s called the lottery. Because the Immigration Service lately has been getting many, many more H-1B applications than they have space for.
So it’s sort of a heartbreaking thing, because we so much work into it, and on behalf of our clients we want to make sure we do the best we can. But sometimes it’s just a numbers game and certain cases get picked out of the pile and certain ones don’t. You can’t really control it. You just have to file and do your best.
We enjoy working on H-1B visa applications. We like helping employers to keep their employees here or bring their employers here. Obviously America is a great opportunity for the employee. They’re very happy. So it’s a very fulfilling part of the immigration world that we deal with. If you have any questions about the H-1B process or about what documents and materials need to be submitted in support of an H-1B application we’d be happy to help you out. Give us a call, 314-961-8200, or you can email us [email protected] Thanks.